Randolph A. Lopez, D/B/A Brown Hand Center and D/B/A Brown Medical Center v. Cox Texas Newspapers, L.P., D/B/A Austin American-Statesman ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00331-CV
Randolph A. Lopez, d/b/a Brown Hand Center and d/b/a Brown Medical Center,
Appellant
v.
Cox Texas Newspapers, L.P., d/b/a Austin American-Statesman, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
NO. C-1-CV-13-002354, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING
MEMORANDUM OPINION
Randolph A. Lopez, d/b/a Brown Hand Center and d/b/a Brown Medical Center
attempts to appeal the trial court’s summary judgment in favor of Cox Texas Newspapers, L.P. d/b/a
Austin American-Statesman. We dismiss the appeal for want of prosecution.
On March 18, 2014, the trial court granted appellee’s motion for summary judgment.
On May 21, 2014, Lopez filed a motion for reconsideration and for new trial. This motion was not
timely filed. See Tex. R. Civ. P. 329b(a) (“A motion for new trial, if filed, shall be filed prior to or
within thirty days after the judgment or other order complained of.”). The clerk’s record includes
Lopez’s motion for extension of post-judgment deadlines, but there is nothing to indicate whether
Lopez complied with the hearing requirement mandated by Texas Rule of Civil Procedure 306a(5).
See Tex. R. Civ. P. 306a(5); Continental Cas. Co. v. Davilla, 139 S.W.3d 374, 379 (Tex. App.—Fort
Worth 2004, pet. denied) (sworn motion filed by party alleging late notice of judgment establishes
prima facie case that party lacked timely notice and invokes trial court’s otherwise-expired
jurisdiction for limited purpose of holding evidentiary hearing to determine date on which party or
its counsel first received notice or acquired knowledge of judgment). Therefore, it appears that in
order to perfect this appeal, Lopez would have had to have filed his notice of appeal by
April 17, 2014. See Tex. R. App. P. 26.1(a) (appellant must file his notice of appeal within 30 days
after judgment is signed unless he timely files motion for new trial, motion to modify judgment,
motion to reinstate, or request for findings of fact and conclusions of law). Lopez did not file a
motion for extension of time to file his notice of appeal. See id. 26.3. Accordingly, it appears the
May 21, 2014 notice of appeal was filed well outside the time limits to invoke this
Court’s jurisdiction.
On June 18, 2014, the Clerk of this Court sent counsel for Lopez a letter advising that
it appeared that the notice of appeal was not timely filed and requesting that he respond by
June 27, 2014 to the Court’s request for proof of timely filing of a notice of appeal. The letter
cautioned Lopez that a response must be filed no later than June 27, 2014 or the appeal would be
dismissed. June 27, 2014 has passed and Lopez has not filed a response with the Court.
Accordingly, the appeal is dismissed for want of prosecution. See Tex. R. App. P. 42.3(b).
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_____________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Dismissed for Want of Prosecution
Filed: August 13, 2014
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